Businesses in California have been thrown another curveball in following developments related to the state’s Proposition 65, the much-criticized statute requiring prolific warnings of exposure to toxic substances and fueling a number of lawsuits brought by private citizen groups. In January 2015, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a notice to repeal and replace the current Article 6 regulations governing Proposition 65 warning label requirements. After receiving comments and conferring with stakeholders, OEHHA now has changed course, issuing a new proposal detailing changes to the structure and content of Proposition 65 warning labels.1

The most significant difference between the two proposals is that OEHHA has withdrawn the provision creating a “dirty dozen” list of chemicals that would have had to be disclosed in a warning label. Instead, under the new proposal, products must be labeled with a warning that identifies at least one listed chemical to which a consumer could be exposed.

The new proposal also explicitly clarifies an issue that was the subject of significant consternation when the original proposal was released: warning statements or methods adopted under existing court-ordered settlements or final judgments are deemed to be “clear and reasonable” for purposes of that exposure and Proposition 65 compliant.

OEHHA maintains, with modest amendments, the provisions of the proposed rule intended to clarify when retailers may be held responsible for providing product exposure warnings. These provisions respond to a statutory mandate to minimize burdens on retailers, and, in short, require that the manufacturer, producer, packager, importer, or distributor is responsible for adding the warning to a product label or providing a written notice to the retailer regarding the required warning for the product. The responsibility for providing a warning falls on the retailer only under certain conditions, such as when the retailer receives warning information and materials from a supplier and fails to post them.

As in the original proposal,certain types of exposures would be subject to additional or alternative requirements. These provisions would apply to: diesel engines, passenger vehicles, enclosed parking facilities, designated smoking areas, petroleum products, service stations and vehicle repair facilities, food, alcoholic beverages, restaurants, prescription drugs, dental care, raw wood products, furniture products, and amusement parks. The revised proposal includes limited amendments to these provisions, primarily with respect to the details of the form, method, and delivery of the required warning.

OEHHA believes that the proposed rule will accomplish several additional objectives, including:

Making warnings more visible (by requiring use of the familiar exclamation point symbol for most warnings);

Improving consumer understanding by requiring use the more direct statement that “This product can expose you to a chemical [or chemicals] known to the State of California to cause” cancer, birth defects, or other reproductive harm, as appropriate, rather than the current general practice of simply warning of the presence of a chemical;

Providing more information about listed chemicals and products associated with those chemicals, and advice for how to reduce or avoid exposures, by directing consumers to a web address for a new OEHHA website (www.P65Warnings.ca.gov/product);

Providing for warnings in non-English languages in instances where product labeling contains information in alternative languages.

A public hearing on the new proposed rulemaking will be held on January 13, 2016, and written comments will be received through January 22, 2016.

For more information about this client advisory or Proposition 65 in general, please contact:

Kelley Drye’s Environmental Law Practice Group specializes in providing comprehensive solutions to complex problems. We provide both advice and representation for clients participating in rule-making and policy-making activities by federal regulatory agencies, including the U.S. Environmental Protection Agency and the Occupational Safety & Health Administration, and similar state agencies. We have decades of experience advising companies and industry trade organizations with respect to Proposition 65 requirements and related compliance and litigation matters.